InfoLAW: Nurse as a Witness

What are common situations where nurses are called as witnesses?

As a healthcare professional, you may be required to appear as a witness for:

• employment-related matters;
•  coroners’ inquests or fatality inquiries;
• child welfare proceedings;
• professional discipline proceedings before a provincial or territorial regulatory body;
• civil lawsuits; or
• criminal proceedings.

Depending on the type of proceeding, you may be asked to testify as a witness on a voluntary basis or you may be formally summoned. A request to attend as a witness may be verbal or in writing. When an informal request is made, you need not agree to appear. You must attend, however, when you receive a legal document such as a summons, subpoena or Notice to Attend.. If you do not appear in court after receiving an official notice to appear as a witness, there may be legal consequences such as being held in contempt of court, which may include an arrest warrant.

Who pays for my expenses?

When you are formally summoned to appear as a witness, the recovery of expenses and lost wages may be limited by the Rules of Court in the jurisdiction. You may wish to consult the lawyer who compelled your attendance to ask what the recovery limits are. Additionally, it may be prudent to consult your employer, as some employers have arrangements for witnesses to receive their salaries while performing witness duties. If you agree to an informal request to be a witness, however, you may wish to negotiate a fee for your services and expenses with the lawyer requesting your attendance.

How can I prepare to testify?

In order to prepare to testify, it would be prudent to review all relevant documentation including:

• the patient care record (particularly your own entries); any personal notes you have prepared;
  statements given before the proceeding;
• policies and procedures relevant at the time;
  letters; and
• memos.

You may also wish to meet with the lawyer who requested your attendance to review the process and anticipated evidence.

As a witness, what can I expect?

When called to testify, you will be sworn in and asked to tell the whole truth by swearing on a religious text or making a solemn affirmation that you will tell the truth. You will be questioned first by the lawyer who requested your presence and then by other lawyers involved in the case. When answering questions, you may wish to keep the following in mind:

• Listen carefully to the questions being asked.
• Ask for clarification if necessary.
• Answer questions honestly.
• Speak from personal knowledge.
• Avoid speculation, conjecture and innuendo.

For example, if you do not know the answer, or do not recall the incident, it would be appropriate to say so. Unless you are testifying as an expert witness, it is important to limit your testimony to the facts as you know them and avoid giving opinions.¹ If a lawyer objects to the judge about a question being asked of you, it would be prudent to immediately stop speaking. The lawyers and the court will resolve the issue before you are asked another question.

It may also be prudent to dress and act professionally because your demeanour may affect the credibility of your testimony.

Do I need my own lawyer if I am going to be a witness?

The need for legal representation will vary according to the type of proceeding and the facts. For example, if you are only testifying about your knowledge of the events and there are no allegations of blame or negligence against you, you are not likely to need your own legal representation. However, if you believe you are being implicated in the legal proceedings or if there are allegations of wrongdoing against you, it would be prudent to consult legal counsel before appearing as a witness in any proceeding. Before hiring your own legal counsel, it may be prudent to ask whether legal representation is available to you through your employer, your union, or some other source.

Summary

There is no obligation to appear as a witness in any legal proceeding unless you have received a legal document compelling you to do so. If you do appear as a witness, proper preparation is likely to reduce your anxiety and help you to be an effective witness.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

July 2024; Revision of June 1996

1. For more information on being an expert witness, please read CNPS’s infoLAW: Expert Witness

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.